Religious Rights are not just about Individualism

Iain Benson for The Lawyers Weekly

October 23, 2009

What looks like discrimination to one person may well be legally contestable differences of belief to another.

A good example of this tension arises in a decision on appeal before the Ontario courts where the conduct code of a religious employer (Christian Horizons) may be rendered inoperative because an employee changed her mind a few years after signing the code and decided to "come out" as a lesbian. This breached the employer's sexual conduct policies (which also banned acts such as adultery and fornication amongst heterosexuals). The Ontario Human Rights Tribunal found that the special exemption provision should not apply to Christian Horizons in part because it served people who were not members of its religion, which was part of the determination of what constituted "primarily engaged" within the meaning of the statute.

The Christian Horizons decision will obviously have wide-spread implications for religious projects of all sorts, particularly those framed within a concept of "mission" which, by definition, goes beyond co-adherents. The decision has been appealed.

What interests me is the claim, commonly made in debate or academic literature, that the state should (or can) be neutral about religion and that religions must somehow adapt to the presuppositions of non-religion when they go public. If the state co-operates with any particular religious project, it is not behaving neutrally, so the thinking goes, but if it throws its support behind something framed within atheist or agnostic presuppositions, it is. This always strikes me as inaccurate, unfair and fundamentally unsound.

It also happens to be the operative position in France (where I live) where all religious symbols are equally banned in public workplaces and education institutions, and will not allow Jews, Christians, Muslims, Sikhs or any other religion to have visible symbols of their religion on display.

The fact is that on a variety of issues in relation to freedom of religion today, two common errors are made. First, the right to freedom of religion is unnecessarily reduced to an individual right, which inappropriately airbrushes out the associational dimension of the right. If there were no right to have religious organizations in the first place, there would be nothing for the religious believer to join so as to exercise that important dimension of the right.

Second, there is no reason that within the public sphere - and with public funding - there cannot be a wide variety of projects funded by the state that may well have a religious ethos complemented by religiously based employment rules. Canada has no historic warrant for a "bright-line" between religious belief and functioning in the public sphere, as was made clear a few years ago in the landmark, but still too little noticed decision (on this point) of the Supreme Court of Canada in Chamberlain v. Surrey School District No. 36, [2002] S.C.J. No. 87. There is no "strict separation" of religious projects and the state in Canada and "co-operation" between religions and the state have long existed - and continue to exist well - in Canada.

Since Chamberlain, the term "secular principles" does not mean "free from religious influence" or "not based upon religion" in Canadian law. This has implications for all sorts of issues, including the wearing of religious garb. The recent dispute amongst various Muslim groups in Canada over the wearing (or not) of the face veil show that there is no unanimity amongst Muslims on this issue. Some Muslims feel it is a religious right, and others believe it is so demeaning that it should be banned. But in law, religious unanimity is not a prerequisite to the assertion and recognition of religious belief.

With respect to religious face coverings, a more nuanced approach would hold that when there is a public policy reason for facial recognition (public education, courts, customs and immigration, voting, banks etc.) then rules could require that some sort of uncovering be required to confirm identity or allow (as with witnesses) full answer and defence in terms of demeanour. In these rare circumstances, "uncovering" may well be justified. In other areas, one would think that freedom of religion shelters the wearing of face coverings, however jarring they may seem to other members of Canadian society.

The idea that the head coverings could or should be banned because they "demean" women is unconvincing since it is far from simple to determine whether an individual woman wants the veil or not. The argument that women need to be protected from veils implies that women are not competent or able to make decisions regarding their most basic choices. And how could we test to see if a woman is wearing a face covering willingly or is being coerced?

The Canadian approach has not been to "get inside" the claim of a religious right other than a low hurdle examination of whether the belief is held in "good faith" and is not being asserted for any ulterior purpose or in a way that suggests the belief isn't "genuine." The nature of the belief, however, is a subjective test, and the courts have been reticent to delve too deeply into whether or not the belief is "reasonable."

In every case, Jewish, Hindu, Muslim, Christian or otherwise, what is sought is the right to practise in some public way the beliefs of the individual believer or the community together. Part of what is needed to assess the religious right is a respect for the associational dimension that gives religious individuals joint projects in which to participate. Focusing only on individual recognition of one person as against the individually chosen but collectively expressed beliefs of others can tilt analysis in ways that are ultimately destructive of the community dimension of associational rights or those rights that have an associational dimension.

This area is in need of more public debate and discussion involving those within the communities that have strong views on the wearing of veils or the enforcement of religious rules in the public sphere. The former focus on individualism is no longer a satisfactory manner in which to weigh and balance the contending positions and interests.

Iain Benson recently became senior associate counsel at Miller Thomson LLP and extraordinary professor, Department of Constitutional Law and Department of the Philosophy of Law, Faculty of Law at the University of the Free State, Bloemfontein, South Africa. He has been retained by the Ontario Conference of Catholic Bishops in their role as an intervener in the Christian Horizons case.

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